Banerji and Richards, JJ.
1. The facts out of which this appeal arises are these : On the 7th of October 1901 an exparte decree on a mortgage was passed in favour of the appellants. Before, however, the decree was made, the appellants had obtained an injunction under Section 492 of the Code of Civil Procedure restraining the respondents from realising certain money deposited in Court to their credit. After the passing of the ex parte decree the appellants withdrew from Court Rs. 19,041 out of the sum mentioned above in satisfaction of their decree. The decree, however, was set aside on an application made by the respondents under Section 108 of the Code of Civil Procedure on the 9th of July 1904. The suit was retried; and on the 17th of September 1904 the Court of first instance made a decree in favour of the plaintiffs for Rs. 17,711-7-0. This decree was affirmed by the High Court on the 18th of December 1906. On the 17th of September 1907 the respondents made an application to the Court for refund to them of Rs. 1,804, being the difference between the amount realized by the decree-holders and the amount subsequently decreed by the Court, together with interest and costs. The Court) below has granted the application. Hence this appeal.
2. Two contentions have been urged before us--(1) that the remedy of the respondent was a suit and not an application, and (2) that the application is time-barred.
3. As regards the first point we think that the respondents were competent to make an application for the refund of the money. The decree originally passed was superseded by the subsequent decree made in 1904. As observed by their Lordships of the Privy Council in Shama Purshad Roy Chowdery v. Hurro Purshad Roy Chowdery (1865) 10 Moo. I.A. 203, 'if it (the decree') has been so reversed or superseded, the money recovered under it ought certainly to be refunded, and as their Lordships conceive, is recoverable either by summary process or by a new suit or action.' The respondents were therefore entitled to apply for a refund of the money and were not bound to bring a separate suit. That they are entitled to the money can admit of no doubt, and the only question is as to the form of the remedy to which they must resort for obtaining relief. The principle of the rulings of this Court in the cases of The Collector of Meerut v. Kalka Prasad (1906) I.L.R. 28 All. 665 and Shiam Sundar Lal v. Kaisar Zamani Begam (1906) I.L.R. 29 All. 143 applies to this case.
4. As to the question of limitation, the respondents did not become entitled to the money until the decree of the 17th of September 1904 was passed. It is true that on the ex parte decree passed on the 7th of October 1901 being set aside they might have applied to the Court to direct the appellants to refund the sum of Rs. 19,041 which they had withdrawn from the Court in pursuance of that decree, but as an injunction had been issued restraining them from withdrawing the money until the final decision of the suit they could not apply for payment of the amount to them either by the Court or by the appellants. This distinguishes the present case from the case of Harish Chandra Shaha v. Chandra Mohan Dass (1900) I.L.R. 28 Calc. 113. Upon the ex parte decree being set aside the parties were relegated to the position in which they were before the decree was made. Therefore the injunction which had been issued to the respondents under Section 492 revived and remained in full force, and the respondents could not have asked for payment of the money. As we have said above, it was only when the suit was finally decided and the decree was made for a smaller sum than that which the appellants had taken from the Court that the respondents' right to a refund accrued. As their application for a refund was made within three years of that date, the application is not time-barred. We dismiss the appeal with costs.